The person selected as a surrogate shall have no interest that conflicts with the interest of the child he/she represents, and shall have knowledge and skills that ensure adequate representation of the child.

Prior Written Notice (Notice of Recommendation)

Prior written notice (notice of recommendation) must be given to parents of a student with a disability a reasonable time before the District proposes to, or refuses to, initiate or change the identification, evaluation, educational placement of the student or the provision of a free appropriate public education to the student. Prior written notice must also be provided informing the parents when no additional data is required to determine the student's educational needs, the reasons for this determination and their right to request an assessment.

If the prior written notice relates to a proposed action that also requires parental consent, the District must give notice at the same time it requests parental consent. The prior written notice will contain all elements required by Commissioner's Regulations.

A parent may elect to receive prior written notice and other required notifications by electronic mail (e-mail) communication if the District makes this option available.

Parent Participation in Meetings

         The School District must take steps to ensure that one (1) or both of the parents of a child with a disability are present at each Committee on Special Education (CSE)/Committee on Preschool Special Education (CPSE) meeting or are afforded the opportunity to participate in a mutually agreed upon time and place. The School District must document its attempts to involve parents, such as:

         a)      Detailed records of telephone calls made or attempted and the results of these calls;

         b)      Copies of correspondence sent to the parents and any responses received; and

         c)      Detailed records of visits made to the parent's home or place of employment and the results of those visits.

A meeting may be conducted without a parent in attendance if the School District is unable to convince the parents that they should attend.

Additionally, the School District must take whatever action is necessary to ensure the parent understands the proceedings of this meeting including arranging for an interpreter for parents with deafness or whose native language is other than English.

Parental Consent

         In accordance with due process, a parent (as defined in Commissioner's Regulations Section 200.1(l)) of a special education student or a student suspected of having a disability must provide informed consent before the School District can take certain actions. The District will make reasonable efforts to obtain written informed consent and will maintain a detailed record of its attempts and the results of the attempts.

In New York State, a noncustodial parent does not have the right to control educational decisions for his/her child. However, a noncustodial parent is afforded this right if, and only if, this right is expressly included in a custody order.

Additionally, absent supporting language in a custody order, a non-custodial parent lacks standing under Individuals with Disabilities Education Act (IDEA) to bring a claim to assert control over his/her child's educational program. Until recent revisions to New York law, consent for an initial evaluation, reevaluation, or the provision of special education services needed to be provided by a parent (i.e., the custodial or noncustodial parent). As it now stands, the decision to provide consent for a CSE- or CPSE-related activity is considered an education-related decision designated exclusively to custodial parents unless a court order specifically states the contrary.

Consent for Evaluations

         The parent or guardian must provide informed consent to the initial evaluation, or reevaluations in accordance with law and/or regulations. If a parent does not provide consent for an initial evaluation, the School District may pursue the evaluation by commencing a due process hearing to override the refusal to provide consent.

         Parental consent for a reevaluation is not needed if the District can demonstrate that it has taken reasonable measures to obtain consent, but the parents or guardians have failed to respond.

Consent for the Initial Provision of Services

         Parental consent is also required for the initial provision of special education services. Consent for an initial evaluation does not constitute consent for the initial provision of services. If a parent does not provide consent for the initial provision of services, the School District shall not provide the special education program and services to the student and shall not use the due process procedures to challenge the parent's refusal to consent. The School District shall not be considered to be in violation of the requirements to provide a free appropriate public education (FAPE), shall not be required to convene a meeting of the committee on special education or develop an individualized education program (IEP).

Consent for Other Actions

Prior written consent must also be provided:

         a)      Prior to releasing any personally identifiable information; and

         b)      Prior to each time the District proposes to access a parent's private or public insurance. A Medicaid application does not meet the IDEA parent consent requirements. The District must obtain an annual parental consent to request Medicaid reimbursement.

         A sample Medicaid Consent Form may be found at:

         http://www.vesid.nysed.gov/specialed/publications/sampleconsent.htm.

Consent for an Unaccompanied Homeless Youth

Consent may be provided by a surrogate parent. However, until a surrogate parent is appointed, consent may be provided on a temporary basis by an employee of a temporary housing facility operated or approved by a local social services district or a residential facility for runaway and homeless youth.

Consent for a Ward of the State

A ward of the State means a child or youth under the age of twenty-one (21):

         a)      Who has been placed or remanded pursuant to Social Services Law or the Family Court Act or freed for adoption pursuant to Social Services Law; or

         b)      Who is in the custody of the Commissioner of Social Services or the Office of Children and Family Services; or

         c)      Who is a destitute child under Social Services Law.

         In the event that a child is a ward of the State, the School District shall make reasonable efforts to obtain the informed consent from the parent of the child for an initial evaluation to determine whether the child is a child with a disability.

         The School District is not required to obtain informed consent if:

         a)      Despite reasonable efforts to do so, the School District cannot discover the whereabouts of the parent of the student, including consulting with the agency responsible for the care of the student; or

         b)      The rights of the parents of the student have been terminated in accordance with State law; or

         c)      The rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student

Consent for a Student Who is Home Instructed or Parentally Placed in a Private School at the Parent's Expense

         If a parent of a student who is home instructed or placed in a private school by their parents at their own expense does not provide consent for an initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the District may not continue to pursue those evaluations by using the due process procedures and the District is not required to consider the student as eligible for special education services.

Parental Revocation of Consent

         Parental revocation of consent for continued provision of special education and related services must be in writing. When the parent revokes such consent, the District still must provide the parent with the usual written notice of its intentions with respect to the child.

         If the parent of a student with a disability revokes his/her consent in writing for the continued provision of special education and related services to the student at any time subsequent to the initial provision of special education and related services, the District:

         a)      Shall not continue to provide special education and related services to the student, but must provide prior written notice to the parent before ceasing the provisions of special education and related services;

         b)      Shall not use due process procedures (i.e., mediation, resolution meeting, and/or impartial due process hearing) in order to obtain agreement or a ruling that the services may be provided to the student without parental consent;

         c)      Shall not be considered to be in violation of the requirement to make a free and appropriate public education (FAPE) available to the student because of the failure to provide the student with further special education and related services;

         d)      Is not required to convene an individualized education program (IEP) meeting or develop and IEP for the student for further provision of special education and related services upon receipt of written revocation of consent; and

e)      Is not required to amend the student's education records to remove any references to the                    student's receipt of special education programs and services because of the revocation of consent.

Procedural Safeguards Notice

The School District will provide the procedural safeguards notice prescribed by the Commissioner of Education to the parents of a student with a disability at least one (1) time per year and also:

         a)      Upon initial referral or parental request for evaluation;

         b)      Upon the first filing of a due process complaint notice to request mediation or an impartial due process hearing;

         c)      Upon request by a parent;

         d)      Upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement; and

         e)      Upon first receipt of a State complaint.